BREAK DOWN OF MARRIAGE Flashcards
what is divorce
Divorce is a matrimonial cause concerned with the dissolution of marriage on the ground that the marriage has broken down irretrievably.
when does the High Court have jurisdiction in proceedings for divorce or for a decree of nullity of marriage ?
(a) is domiciled in Zambia at the date of the commencement of the proceedings; or
(b) is resident in Zambia at the date of the commencement of the proceedings and has been ordinarily so resident for a period not less than twelve months immediately preceding that date.
RESTRICTION ON PETITION FOR DIVORCE
No petition for divorce shall be presented to the court unless, at the date of the presentation of the petition, one year has passed since the date of the marriage.
what are the grounds for divorce
that the marriage has broken down irretrievably
factors that prove breakdown of marriage
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot be reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; or
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Claim for damages on divorce based on adultery.
section 11of the Act allows a petitioner, whether husband or wife, to claim for damages on divorce based on adultery, from the person with whom the respondent committed adultery with.
For desertion to prevail, four elements must exist
(i) the de facto separation of the spouse for at least two years;
(ii) the animus deserandi- this is the intention on the part of the spouse in desertion to remain separated permanently;
(iii)the absence of consent on the part of the deserted spouse; and
(iv)the absence of any reasonable cause for withdrawing from cohabitation on the part of the deserting spouse.
when does a customary marriage come to an end?
A customary marriage comes to an end after families of both parties have made several attempts to counsel and reconcile them.
when does a customary marriage come to an end?
A customary marriage comes to an end after families of both parties have made several attempts to counsel and reconcile them.
grounds for divorce in a customary marriage: Adultery
A woman would not divorce her husband due do adultery because it is not wrong under customary law. a husband however may divorce his adulterous wife. A wife may also divorce her husband due to adultery if it is persistent and brings shame or otherwise prejudice her interests.
grounds for divorce in customary law: behaviour
Conduct that amounts to unbecoming behaviour includes violence against the wife or children of the family or both, refusal or neglect to provide adequate food, shelter, clothes, use of abusive language in the presence of children, in – laws or outsiders, denial of conjugal rights, nagging, quarrelsome, greed, dislike of the other spouse’s relatives.
grounds for divorce under customary marriage: desertion
Desertion means abandoning one’s family and willfully neglecting to provide for them. A woman may petition and she will get support from her family.
grounds for divorce in customary marriages: separation
This takes the form of a wife being sent back to her family for a “refresher” course in marriage while she is with her family.
grounds for divorce in customary marriages: childlessness
If the party unable to procreate discovers that it is the other spouse who is impotent or unable to produce children, he or she can petition for divorce.
grounds for divorce in a customary marriage: Illness.
Generally a husband has an obligation to care for the wife and family during her illness. In cases of serious or prolonged illness, however, her family will remove her from the matrimonial home and look after her. If the illness persists her family will usually give the husband her young sister or near relative as an additional wife. If the husband neglects to look after a sick wife, she is entitled to divorce him.
